00:06:58.960I think the misfortunes you have can lead to different things.
00:07:03.660And the house in Pinpoint burned down when I was six in the first grade.
00:07:09.300And we lived in a tenement with my mother in one room in Savannah for about a year
00:07:15.820and eventually wound up living with our grandparents, moving there when I was seven.
00:07:22.780And that was probably, well, actually was the best thing that could have ever happened to me because that was life-changing.
00:07:31.400You describe in your book, and I recount in my book, when you were in that tenement and that it did not have indoor plumbing, and so you used a chamber pot.
00:07:41.560And you describe walking down the stairs carrying a chamber pot.
00:07:50.520Yeah, well, it was, you know, it's sort of when I think of people saying they're having a bad day and you're seven years old and that happens and you don't have like a shower or the kind of a bathroom that people would normally have.
00:08:09.380You realize, I mean, to me, it defined a bad day, but then things that happened after that outweigh that.
00:08:23.240You know, there's a wonderful song by a black minister that you hear from time to time if you go to a funeral at small southern black churches, and I won't complain.
00:08:37.660And, you know, you can have all these bad things, this litany of bad things happen, and you can say, I won't complain because it's outweighed by all the good things that have happened.
00:08:51.680And those good things began with my grandparents, and my grandfather was a Catholic convert, which was an oddity.0.99
00:09:01.500Catholics were an oddity in Savannah.1.00
00:09:03.560Black Catholics were really an oddity. And it was because of that we were educated at parochial schools with my Irish nuns. And those in combination, my grandparents, the neighborhood I grew up in, the nuns, Catholicism, forged a foundation that I've benefited from.1.00
00:09:30.860hey it's ben ferguson and i need your attention for just 60 seconds 25 years ago today on september
00:09:37.780the 11th 2001 america faced the heartbreak of terrorism at home and three years ago on october
00:09:44.680the 7th of 2023 israel endured that same heartbreak in the holy land different decades0.59
00:09:51.800different attacks the same evil each year the international fellowship of christians and jews0.56
00:09:58.100hosts flags of fellowship it is a movement where thousands of churches display memorial flags to
00:10:04.200honor the 1 200 lives lost on october the 7th it is a way to stand with israel in faith prayer
00:10:12.180remembrance and solidarity each flag represents a loved one a family forever changed and a promise
00:10:19.320that we will not forget so today hatred and violence they still threaten our world yet
00:10:25.340scripture calls us to stand firm comfort the grieving honor the lost and shine a light in
00:10:31.940the darkness together we remember honor and declare that evil will not have the final word
00:10:38.120join thousands of churches across america in this powerful act of remembrance and support for israel
00:10:45.100learn how you and your church can participate in flags of fellowship at join fof.org that's
00:10:54.060join fof.org join fof.org your deep faith is is integral to who you are who you are as a man i
00:11:06.060think who you are as a justice to your to your journey many people don't know you you almost
00:11:10.700became a priest and and for a long time you thought that's what you wanted to do well i think
00:11:15.240i would have been a priest um had the bishops at the time or the leadership in the church been as
00:11:21.480firm and had the resolve of the nuns during segregation and desegregation and civil rights
00:11:31.980movement, et cetera. My nuns were immovable as far as their propagation of the faith,
00:11:41.320their belief in us. They were the ones who planted the seed that in God's eyes,
00:11:48.720And you heard it at home, too, we're all equal, that we were made in his image and likeness.
00:11:57.080So were the nuns more willing to speak out about civil rights?
00:12:02.080Of course, they had a vow of chastity and poverty and obedience.
00:12:09.780So there's only so much, but they were adamant.
00:12:12.460and they were adamant outwardly to the world and inwardly to us.
00:12:18.900So we couldn't use race or some of the other things as excuses.
00:12:23.900And it's hard to put it in context, but when I was in the second and third grade,
00:12:31.500this is again post-Brown, and the Georgia legislature was in the midst
00:12:36.960of drafting legislation that was reasserting segregation.
00:12:42.460And for our listeners, Brown is Brown v. Board of Education, which was a seminal Supreme Court decision, 1954, that overturned Plessy v. Ferguson.
00:12:54.120Plessy v. Ferguson, I think, is one of the most – in fact, almost everyone thinks is one of the most disgraceful decisions the courts has ever decided, where it embraced the doctrine of separate but equal.
00:13:07.020And Brown overturned it and ordered that schools be desegregated.
00:13:10.940And you were a student when this – I mean, this impacted your life.
00:14:07.800In Georgia, there's a dialect called Geechee, and in South Carolina, they call it Gullah.
00:14:14.180But it's just a patois that for people who did not assimilate in the culture or who were not a part of the culture, we were isolated near the water.
00:14:31.160And that's the way I, until I moved to Savannah, that was all I knew.
00:14:36.620They called us, back then they said we were bad talking.
00:14:40.040Today they celebrated, it was a cultural thing.
00:14:43.340But the, when I moved to Savannah, you were in urban poverty, which was quite different.
00:14:50.640And I'm not going to go into all the details, but then when you go, when I went to live with my grandparents,
00:14:56.960Even though schools were segregated, they were parochial schools, and that was different from the public schools because there was quite a bit of order.
00:15:25.720There was a lot of order, and that's what my grandfather wanted.
00:15:29.240Now, I think anyone understanding your life has to start by understanding your grandfather.
00:15:36.880You were raised by your grandparents principally, and your grandfather, Myers Anderson, I think you would say was the most important man in your life.
00:17:45.440He lost a finger on his right hand working,
00:17:51.400And he never really got too much into the details of it, but it must have involved a glove because he would not – I think he got caught in a chain or a winch or something, and he ripped it off about right above the first knuckle or below the first knuckle.
00:18:10.400And so he would make us work with no gloves.
00:18:19.220And for us, cold would be 40 degrees in Georgia.
00:21:36.800But his point was about the warning that you had some people in Georgia who didn't like blacks, and they were bigots, and they were openly so.0.98
00:21:46.220And what you said is the southern racists were like rattlesnakes.0.98
00:22:33.560I loved, we used to get these magazines of the Mary Knoll priests and serving, you know, kids who were, had disease or were poor or were having difficulties.
00:22:48.980And you get, you begin to feel that that would be a good way to spend your life.
00:22:54.060And then it becomes an issue when you enter the minor seminary.
00:22:58.080It's really a time of discernment and to see whether you have the capabilities.
00:23:02.560And I like the idea of being called to serve to do that.
00:23:10.580You know, when you have a vocation, you're asking yourself, what is God calling me to do?
00:23:17.920And that became actually, again, but for the weakness of the bishops, I think I'd be a priest today.
00:23:28.120Or not specific bishops, but the church itself.
00:23:32.560seem to be vacillating on the issue of race.
00:23:36.140And to me, the big, the major wrong in the country,
00:23:40.640the major contradiction in this country was the race issue.
00:23:46.120That you treat, you can place the importance of equality at the center of your founding document.
00:23:56.540And then you have this issue of slavery and its offshoots.
00:24:01.120offshoots hey it's ben ferguson and if you think wireless companies are all the same you might need
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00:25:55.260One point that I make many times is you look at Dr. King's letter from a Birmingham jail, and people forget to whom it is addressed.
00:26:07.160It's addressed to the clergy of America.
00:26:09.600He's writing to the leaders of the church saying, wake up and speak up.
00:26:13.660And my favorite portion of that letter, there's a group of senators, bipartisan senators who regularly read that letter on the floor of the Senate.
00:26:25.360It's really powerful to read the words out loud.
00:26:27.740And there's a portion in it where he says the church should be a thermostat and not a thermometer, that it should be changing society and not just reacting to what's around.
00:26:38.320And that's ultimately what led you to leave the seminary and say that you were not going to go down the path of being a priest.
00:27:32.680And it's been a long and difficult journey for our country.
00:27:37.160Now, you went from the seminary to Holy Cross and then Yale Law School.
00:27:43.720A lot of people listening, I mean, they know you were one of the greatest conservative leaders to have ever lived.
00:27:51.380But as a young man, you were not in any way, shape, or form a conservative.
00:27:56.660Tell folks what your worldview was as a 19, 20, 21-year-old.
00:28:03.380Well, I think when you're 19 and you're angry, you're confused for the most part.
00:28:09.060I came from a very traditional background.
00:28:11.980In fact, as I went through that period when I quit the seminary and returned home, my grandfather invited me to leave his house immediately.
00:28:21.480And so I've basically been on my own since then.
00:29:37.820So the church, the belief, the intentions of the church are not wrong.
00:29:42.320It's that the people are failing in living up to that.
00:29:46.480But at any rate, when you're young, you don't make those fine distinctions.
00:29:50.500And so I think an easy way to deal with that or a quick way or to sort of respond when you're that age is to find these sort of radical movements you participate in, you protest, you sort of let off steam and you're angry and you feel empowered by that anger.
00:30:13.900But then as time goes on, you take a step back and you start thinking about what you're doing.
00:30:19.500And probably, you know, my grandfather asked me a question, and I've said this before.
00:30:25.380I would come, return home, and he would be upset with me.
00:30:29.580And he would say, after all his sacrifices, this is what I've become.
00:30:35.400And he would challenge me because I'd say the country's racist and we need to destroy it and all that sort of thing.
00:30:44.980And he said, and when you destroy it, where are you going to go?
00:30:48.140That was always the unanswerable question.
00:30:50.800What country is better than this country with all its problems, to which I had no answer?
00:30:58.460So I think that's planted the seed of doubt from this.
00:31:05.220And as I grew older and more mature and thought about things, in fact, about the time I was at Yale and had participated in enough,
00:32:03.020To spend all night doing something I don't quite understand.
00:32:06.960But that return, it was April 16, 1970.
00:32:16.240So I returned to Holy Cross from Cambridge and walked in front of the chapel
00:32:23.160because I was exhausted but couldn't sleep, walked in front of the chapel.
00:32:28.400And again, I'm not attending or anything, but I'm still deeply Catholic.
00:32:33.820And I face it in the Blessed Sacrament, and I ask God to take hate out of my heart.
00:32:39.100And I said, if you take hate out of my heart, I will never hate again.
00:32:43.800And that was the moment when you began to, for me, when I began to move in a more positive direction, when you begin to offload, it was like lancing a boil.
00:34:24.600and that means you have to take responsibility for it.
00:34:27.460And I really didn't like people saying, you have to do this, you have to do that.0.99
00:34:31.880We had this saying that there are only two things I have to do, stay black and die.
00:34:36.720And that was a retort to people who had these sort of requirements for us, these mandates for us because of our skin color.
00:34:48.180And the thing that's really kind of interesting, it wasn't until later on that people began to say that when I came to this town, one of the greatest difficulties, if you think about it, was that there were those who thought that I should think a certain way.
00:35:04.860And the difficulty has been that they said, oh, you're confused.
00:36:44.240All right, I want to take a moment real quick
00:36:46.140and talk to you about something that's extremely important.
00:36:49.380Right now, somewhere in the world, there's a child waiting,
00:36:52.820not waiting for a birthday, not waiting for Christmas,
00:36:56.300but waiting for someone just like you to choose them.
00:36:59.720that's what compassion international does every single day they connect children living in poverty
00:37:06.860with someone who will know their name who will pray for them who will encourage them and help
00:37:12.620provide the food the medical care the education and the hope they need through a local church
00:37:20.440now this year compassion is expanding into four new countries malawi zambia cambodia and miramar
00:37:29.000meaning thousands of children are being reached which is incredible for the very first time
00:37:35.320and i want you to join me for just 43 a month you can be the reason one child stops waiting
00:37:43.020sponsor a child today at compassion.com that's compassion.com by any measure one of your greatest
00:37:53.980legacies on the court, and there are many, but has been on race. And you have been a clarion voice
00:38:00.200in your entire tenure on the court for the principle that the Constitution
00:38:05.500does not allow racial distinctions, does not allow racial discrimination. The Constitution
00:38:11.280is colorblind and protects everyone. You know, it's interesting as you tell the story or the
00:38:18.540analogy of the library and then the stacks and the books that you might not be allowed to read,0.97
00:38:23.460One story you have told is as a young man, I think in law school, somebody gave you a copy of a book by Thomas Sowell, and you started to read it and threw it in the trash and said, if I remember right, that no black man can think this way.0.65
00:38:37.620Yeah, that was Black Education, Myths and Tragedies, I think, that one of his early books, and he laughs about it.
00:38:45.640Then, of course, he sent me a copy just to make sure I had it.0.74
00:38:49.040But then after law school, working in Jeff City, it's one of those Hobson's choices.
00:42:26.000Yeah. He was inspiring even when I was a kid.
00:42:29.540Brash, but he's—and there was another gentleman that you don't know that's also passed away, like Walter, who's done—was also very quiet, but a libertarian and was very, very helpful.
00:42:48.320But anyway, the whole point is that in Jefferson City, again, I go back to what I said at the very beginning, that things that initially seem like a negative, you know, you can't get a job, so you wind up in Jefferson City, turn out to be a blessing.
00:43:08.400And what I say in retrospect is that God closed all the doors that I should not have gone through and left one door open, my Hobson's choice.
00:43:18.320And it turned out to be the best job I've ever had.
00:43:21.440Well, and ultimately, you're in the AG's office.
00:43:23.680You go get a job in corporate America at Monsanto, which paid you a good chunk of money but was not rewarding, and you were not happy with corporate America.
00:43:33.600And then Jack Danforth has gone to the Senate, and you go work for him in the Senate.
00:43:39.700And you're a Capitol Hill staffer, and you go to a conference with Thomas Sowell.
00:43:46.100Yeah, he invited me personally to that.
00:43:48.320And at the time, you're a Republican staffer, but you're on the journey. One of the things I try to do in the book is chronicle the intellectual journey and awakening from an angry left-wing radical to a principled conservative.
00:44:08.020That's a pretty big shift, and reading was an important part of it.
00:44:13.420Questioning was an important part of it.
00:44:15.800But you've described how you're sitting at a lunch table with Juan Williams, the reporter, having what you thought was a conversation, and it was one of your first interactions with the press.
00:44:30.980And it ended up having a big feature article in the Washington Post describing you as the black conservative, which was a pretty startling thing for you.
00:44:42.180Well, I'd never call myself conservative.
00:44:44.560I, you know, the – that was a way of – they called us black conservatives in order to dispose of us.
00:44:53.580They called Tom Sowell that, Walter Williams, Jay Parker, who's another dear friend, has passed away.
00:45:10.880I had just made my first trip to California.
00:45:13.680You got the inkling that there was going to be something on you when they sent a photographer to take a picture.
00:45:19.140I was sharing an office with three other staffers, and this photographer shows up from the post, and December 16, 1980, there's my smiling face on the op-ed page, and then my whole life changed, and the attacks, the negativity.
00:45:37.160And there is a nastiness as a black conservative that I don't think anyone else experiences.0.89
00:45:44.740You get some of it as an Hispanic who's a conservative because I'm not supposed to be a conservative, but you're really not supposed to be a conservative.0.99
00:45:51.740And there's – part of the reason I wanted to write the book is the vitriol that has been directed at you is different.
00:45:59.900Look, Justice Scalia, you knew him extremely well.
00:46:04.060He was brilliant, extraordinarily principled.
00:46:08.340He never had the kind of hate directed to him that you did.
00:46:11.720And the left, they view you, a black man is not allowed to think that way.1.00
00:46:53.800Yeah, but see, underneath that, and Paul Johnson makes the point that you scratch the surface of things like the Marxists and the socialists.
00:47:02.600That's what you find because they have to categorize people.
00:47:07.420But I crossed that bridge in my early 30s that I accepted that this is the way they were going to treat me, this is what was going to happen, this is what would happen, and who knew where it would leave, but God would take care of that part.
00:47:28.340But the fact that they have all this vitriol, to me, is a white flag that they have no argument.
00:47:52.420But there's this sense that don't you know what you're supposed to think?
00:47:59.200And that is with me, that is the wrong argument.
00:48:01.960Well, and related to that, one of the things that you have really powerfully written and spoken about is with affirmative action and racial quotas, it brings with it a stigma.
00:48:16.480You rather famously put a sticker of 15 cents on your Yale law degree from a cigar box because – and you talked about coming out of Yale but not being able to get a job.
00:48:29.680And look, I went to school at a different time than you did, but I'll tell you, as an Hispanic, I still remember this one supercilious liberal in law school explaining that everyone who wasn't a white man was on the law review because of affirmative action.
00:48:46.600That was the only reason anyone could possibly do well is because they were giving us this gift.
00:49:43.360Just pause for a second and think about the marvel of America, that your grandfather who raised you was raised by his grandmother who was a freed slave, and now you are the second longest serving Supreme Court justice in American history and in a couple of years will be the longest serving.
00:50:06.300That is – it's one of the things – look, those who point to the flaws in our nation's history, they're not wrong.
00:50:17.220Our racial history in particular, it has been a history of injustice and slavery was grotesque.0.66
00:50:22.960But I agree with Dr. King that the arc of history is long and it bends towards justice.
00:50:29.580And that journey was possible because of the principles America was built on, even if it took us decades and even centuries to begin living up to it.
00:50:41.280Well, you know, he always – my grandfather would talk about don't throw out the Ten Commandments because people don't obey them.
00:50:50.540There's nothing wrong with the Ten Commandments.
00:50:52.960It's just we have weaknesses or for whatever reasons we don't comply.
00:50:58.460And I think sometimes when you're angry and you see suffering and difficulties, you are willing to throw everything out, the baby with the bath water.
00:51:09.940And as you get older, you can be more discerning.
00:51:14.740And one of the things I think that's unfortunate is that the people who should know better haven't stood up and defended those principles and asserted them and then tried to live up to them and not be hypocritical and not to sacrifice the principles for a share of the power or for a share of the loot that they're getting from the country or whatever.
00:51:38.120And so one of the things that I tried to do when I was teasing out the speech at the University of Texas is to make this point.
00:51:47.940Two things that I wanted to talk about was the fact that here you had uneducated people who believed that God made them equal.
00:51:59.340And you had Irish nuns, immigrants, that believed strongly that in God's eyes we're all equal.
00:52:14.280It was not, no matter what the laws around us said, this was not debatable.0.90
00:52:20.180So now that means if they're Irish immigrants and uneducated people who have no formal education believe this, my point was simply that it must be self-evident.0.95
00:52:33.940Otherwise, how else would they know?0.80
00:52:37.800The other part of it that I was interested in is there are a lot of nice words in the Declaration, for example.
00:53:36.580Do you really believe as a church what you said you believe?
00:53:41.200And it was the gap between that, what you said, the church said, and what the leadership seemed to a 19-year-old to believe.
00:53:51.520And I think in this country now, think about it.
00:53:55.380When last have you had a leader that said something that is the equivalent of I pledge my life, my property, my fortune, and my sacred honor?
00:54:08.560So you referenced the speech you gave at University of Texas. I want to commend all the listeners here. Go and listen to that speech. It really was an extraordinary speech. I'm proud of UT. I spent a couple of years on the faculty as an adjunct law professor there.
00:54:24.660And look, most law schools are so left wing. I'm proud of you, T, for inviting you there. The president, Jim Davis, is a good friend, had you there. But it really is an important speech and conversation. And if folks haven't listened to it, they should.
00:54:38.800What I want to do in the interest of time, that there are additional chapters in your life from being a Hill staffer to an assistant secretary of the Department of Education to the chairman of the EOC and the Reagan administration to a court of appeals judge on the D.C. Circuit to going through one of, if not the most brutal confirmation hearing of any justice.
00:55:04.280You and Brett Kavanaugh can arm wrestle for who had the rougher time.
00:55:07.720But in many ways, you're – and I talk about this in the book, how what Justice Kavanaugh went through was a replay of the playbook that you were subjected to.
00:55:18.200I want to skip over all of those periods, although I recount them in detail in the book.
00:55:24.440uh and i want to go to after you are confirmed and you're sworn in and you're in your early 40s
00:55:34.800and suddenly you're supreme court justice um and and your autobiography ends with your being
00:55:42.280a justice so it tells your life story but then does not cover uh your jurisprudence
00:55:47.900i want to start with just a human thing what's it like the first day you're a justice you walk in
00:55:55.100like just what's day one of being a spring court justice well uh you feel a little small
00:56:03.280and like what the heck am i doing here uh which is still a question um but this is
00:56:13.720You know, as I said, just Lord grant me the wisdom to know what's right and the courage to do it.
00:56:22.380That has been a constant plea of mine.
00:56:27.640And it is what brought me back to the church, stopping at first St. Nicholas,
00:56:33.820then sometimes St. Mary's, and sometimes St. Joe,
00:56:38.340to just ask for the wisdom and to know what is right and the courage to do it.
00:56:43.720But, you know, you, it is just the, you pledge to, I gave President Bush my promise.
00:57:22.100And I must say I'm on the other side of that spectrum now, but I was treated royally, fabulously by my new colleagues.
00:57:32.860Your old boss, Chief Justice Rehnquist, Justice Scalia, Stevens, O'Connor, a great woman who doesn't get the credit she deserves, Justice Kennedy.
00:57:44.820And now I'm on the other side of it where I have newer colleagues, wonderful and brilliant young people like Neil Gorsuch, Brett Kavanaugh you mentioned.
00:59:11.840Even as you disagreed, there were lines you did not cross, and I like that.
00:59:17.020These people were the age of my mother and older, and so it was a different era, and now it's a different generation now, but the point is that you have equally good people who are there.
00:59:39.560I mean, I loved – I knew some of them as law clerks.
00:59:43.100They've become very dear friends, and I hope to be a model to them as the older members of the court who were there when I arrived were to me.
00:59:53.840So of all the justices who have served on the court, I think you are the most willing to reconsider precedent and to think of an issue anew,
01:00:07.000which is in some ways to think about it as it was – in fact, in many ways to think of it as it was originally understood.
01:00:14.760And that – your opinion writing is – you write straightforward opinions in ordinary English.
01:00:26.800You don't tend to use fancy highfalutin words.
01:00:30.140But your opinions are written so that the regular person can read them and understand what you're saying.
01:00:36.420And I think there's a workmanship quality to your opinions.
01:00:42.860I analogize it to a farmer or someone building a home that you – and you draw that same analogy.
01:00:51.400Why do you think it is that you are the most willing to reconsider precedent?
01:00:56.640You know, I start with something you and I, I think, have talked about over the years,
01:01:02.760and that is that I start with something that has to make sense.
01:01:07.840The quote from your grandfather, if it don't make no damn sense, it don't make no damn sense.
01:01:12.160And I keep that in my office because you can – he would call some of these professors fast-talking.
01:01:26.080We have had throughout history court intellectuals who can make all sorts of justifications for things and theories, et cetera, et cetera, et cetera.
01:01:37.060And I've been blessed because I can sort through the theories, and I read lots and lots and lots of books.
01:02:08.900Or you can have inductive, which any rancher or farmer uses, which is you do something and it's experience and you keep generalizing up to something more general.
01:04:10.920This is a point that Murray Rothbard makes in his book, Conceived and Livered.
01:04:15.340OK, that we've taken something that was passionately achieved and that was believed in passionately and we turned it into this thing that you need an oracle to explain.
01:04:28.080The Federalist Papers were newspaper editorials.
01:04:30.820And they were only in New York, by the way.
01:04:32.800And those were the those were basically Hamilton and those guys.
01:04:37.700There's a big difference between Hamilton and some of the more radical guys like a Sam Adams, you know, which is more than a beer, by the way.
01:04:45.340I will admit there was an amusing exchange of one commentator on the left who was on TV saying, James Madison, Thomas Jefferson, can you imagine those people overthrowing the government?
01:05:04.560And I couldn't help but respond, yes, yes, I can.
01:05:15.340One of the things you have been really eloquent on and I think profoundly influential on is the – look, the Constitution is the foundational document that created our government.
01:05:32.920But you have focused a great deal on the Declaration of Independence.
01:05:36.960And why is the Declaration so important and what is the relevance that people should know about it?
01:05:46.800Well, the Constitution sets up the government, the form of the government.
01:07:00.560And that's what I was interested in, that what establishes this whole notion of liberty?
01:07:06.960What establishes this order of rights?
01:07:09.840And so it matters if you think the government is the primary giver or grantor of rights and you receive rights and benefits from the government versus you have the rights and the government receives its authority from you.
01:07:31.580And I think that that order, being able to establish that in each case is important.
01:07:39.420And that's, if you go back, and that explains Justice Scalia's writings on the structure of the Constitution being the safeguard of these rights that you have that are antecedent and that are transcended.
01:07:54.360So I focus on that to always get the order right.
01:07:58.920When you farm, every farmer knows, like when you plant or when you plow, I don't know if you've ever plowed.
01:08:07.220I'm a city boy, so I've watched it on TV.
01:08:10.260So my granddaddy said, boy, he would always say, and he put a little cuss word in there from time.
01:08:16.780He said, and those rows better be straight.
01:08:19.620So you have to take your first row, and it has to be absolutely straight.
01:08:23.860Then you put your tire in a groove where the plows, especially if you're using a dish plow, and they go different ways, you go and you follow that.
01:08:34.100So now every subsequent row is straight.
01:08:37.460Well, going back to your point about precedent, what if that first row is crooked?
01:08:43.600Would you keep going, pretending that it's straight, or do you go back and make it straight?
01:08:50.320That's why you say, well, I'm not accepting precedent.
01:08:52.980But if something doesn't make any sense, I can't – what am I going to do?
01:08:56.840Am I a fool for following that or not questioning it?
01:09:00.080And where does it – I taught a course on stare decisis just for this point.
01:09:04.620It makes sense when you have this unwritten laws and when you have traditions and when barons are like ruling on cases in these rural areas in England.0.79
01:09:15.540But when you have positive law, when it's written down and you can see the deviation, who's the fool?0.90
01:09:24.300Why would you follow something that's absurd?
01:09:26.800Well, look, a great example of that, and a case I talk about quite a bit in the book, is the Kelo case, where Kelo involved a city that was condemning a woman's home.
01:11:03.060And the court and its precedent had basically turned use into purpose.
01:11:06.980But there's another thing, principle, or that we have followed for years, which is you don't take, the government doesn't take property, private property from person A and give it to private person B.
01:11:45.840But suddenly it's attractive to people with lots of money.
01:11:50.120And a city decides, well, we'd like to increase our tax base.
01:11:57.560Well, there are all these young people with lots of money who want to build these McMansions or these high-end $2 million or $3 million structures.
01:12:08.200Well, the public purpose would be to increase that tax base, but that's not a public use.
01:12:13.260And now you've given people who have authority to take your property a much broader way and much more power to take an individual's property.
01:12:27.840I took quite a bit of property at Yale for this reason.0.69
01:12:31.020If you go back to Georgia, if you go back to the South, you go to places like South Carolina, there was all this land that blacks owned in the way that my family received land.0.53
01:12:42.900over the years. It was called heirs property. Everybody owns it. Nobody's really in charge.
01:12:50.120Well, a lot of that land was, there was aggressive effort. There were aggressive efforts
01:12:57.180to take, to use that land for developments. It could be for resorts in Hilton Head.
01:13:05.080It could be for strategic purposes in Harris Neck, Georgia. It could be for conservation
01:13:11.980in places where blacks were subsistence farmers, like in McIntosh, Georgia.
01:13:18.220So my only point is simply this, that the word, if you want to protect the property,0.85
01:13:25.400you have to stick to the words in the Constitution,
01:13:28.660or it sort of spreads out to broader powers that were not intended,
01:13:37.300Plus, that word appears no place in the Constitution.
01:13:39.440Well, I will say even though you were in dissent, you did not command the majority in the court, I think over time the view you articulated has prevailed, and it's persuaded Texas and many other states have enacted laws to prevent the taking of public property for public purposes.
01:13:57.520And it was inspired by your very – Justice O'Connor used an effective analogy and dissent in that case where she said under this reasoning, the government could condemn every Motel 6 to build a Ritz-Carlton.
01:15:19.380And I think you see throughout the founding, all those things that they – those were always paired, liberty and property.
01:15:28.980And we treat it as though it's a benefit from the government rather than a right that transcends the government and is to be protected from the government.
01:15:39.020One thing you did there just a minute ago that is really powerful and that is a consistent theme of your jurisprudence is you understand the rights protected in the Constitution with an understanding of the context of history.
01:15:57.640So when you're talking about condemning land or property for public purpose rather than use, you quickly brought it to when government power is used, historically it has been used over and over by the rich and powerful against the more vulnerable in society, often against African-Americans or Hispanics or people who don't necessarily have the ability to defend themselves against government power.
01:16:25.740that's something also that you've powerfully done in the second amendment context uh and and one of
01:16:34.480the things that that you've said you and i when we were sitting down doing interviews you you
01:16:38.860talked about the importance of reconstruction that if you're going to understand american
01:16:42.940history in the constitution you got to understand reconstruction tell us about that well it's
01:17:42.900But the 14th Amendment is passed, and the whole point is to now make these slave citizens.0.79
01:17:52.740But there's something further going on.0.62
01:17:54.920If you look at the debates in the 14th Amendment, the argument is these people have a right to defend themselves.
01:18:01.840Now, the radical Republicans felt that with these rights, privileges or immunities, also brings the right to bear arms, okay?
01:18:14.960They have a right to defend themselves from these marauders.
01:18:20.360And anyone who lives in a rural area, who lives in the South, it could be in Texas, in rural Texas, everybody is armed for a variety of reasons, to defend themselves, to hunt, et cetera.
01:18:34.260And if you live in rural Georgia, I didn't know anybody who didn't have at least one weapon.
01:19:12.200If you look at the reports, they were saying they're getting killed down here.
01:19:15.920The Knights of Camellia, the Ku Klux Klan, et cetera.0.93
01:19:20.900And so you get the 14th Amendment and defining them, of course, answering Taney and responding to his notion that blacks cannot be citizens.
01:19:33.280But this also brings in the Privileges of Immunities Clause.
01:19:37.220And Taney was the author of Dred Scott, which if there's a decision that is more disgraceful than Plessy versus Ferguson, it was Dred Scott.
01:19:45.340Well, it is – for a lot of different reasons.
01:19:50.940I've spent a lot of time on Dred Scott and the history around Dred Scott.0.81
01:19:56.480But the whole point is that he – here's a man who's trying to figure out a way to say that no way blacks could ever be citizens of this country just by their very nature.
01:20:10.060And, of course, we revisit that old notion in the birthright case last term, but in a different way and for different reasons.
01:20:19.480But the 14th Amendment in this country is critical because it's basically the second founding.
01:20:27.520So what I think I owe my fellow citizens is not just to read the words of the Constitution, but to try to understand not just the 14th Amendment, but the revolution, leading up to the revolution, the history of England, the things that influence it, the Civil War, the post-Civil War, the Reconstruction era.
01:20:49.640And you may have to read people you don't necessarily agree with.
01:20:53.100For example, I read and reread Eric Foner on Reconstruction.
01:20:56.840Now, he's a revisionist historian, but he's fine.
01:21:00.200He does a great job of explaining Reconstruction and a lot of these problems, and I admire the work that he's done.
01:21:07.300And at the same time, you may not agree with the revolutionary period with Murray Rothbard because he's a libertarian, but he's written a couple of thousand pages on this and conceived in liberty.
01:21:22.360And it's worth reading because it gives you that sort of granular understanding of the revolutionary period.
01:21:30.280But you told me a story about Justice Breyer when he was robbed.
01:24:00.680It's different now because I'm the oldest member as opposed to the youngest.
01:24:05.300As the New York Times said, the youngest and the cruelest.
01:24:09.620But, you know, it's just I've just changed perspective.
01:24:12.800But still, it's a human institution with decent people on board.
01:24:16.480So I saw Brett and Ashley at Lindsey Graham's funeral, and they've been friends. I've known them for 30 years.
01:24:24.520Ashley was on the 2000 George W. Bush campaign with Heidi and me, so we were all young staffers on that campaign.
01:24:31.380So I saw the two of them at Lindsey's funeral and actually told Brett at the funeral a story during his confirmation hearing when Lindsey Graham went off.
01:24:42.960And I think it's his – Lindsey was a dear friend of mine, and it was his finest moment, I believe, as a senator, where he unloaded on the unfairness of what was happening.
01:24:54.160And my mother had not previously been a fan of Lindsey Graham's.
01:25:00.860And in the hearing, she texts me, and she says, okay, I now love Lindsey Graham.
01:25:08.420And she goes online and gives him 40 bucks.
01:25:10.160And so I walk over to Lindsey, I pull out my phone, and I show him the text from my mom, and Lindsey is cracking up laughing.
01:25:17.700Well, you know, it is really interesting, and that goes to our country.
01:25:23.360People like people who stand up for what's right.
01:25:27.060And as I said to you from the beginning, I do not understand a lot about this town.
01:25:32.740I don't know who has the time for all this animus toward other people.
01:25:37.020I don't spend any of my day on that sort of thing.
01:25:40.160But the lying that takes place, the attacks on financial disclosure, which was laughable in one way, but just painful to just the lies.
01:25:52.520But you and Mike Lee and the others who stood up are dearly appreciated because we could not believe the inundation of just misstatements and falsehoods.
01:26:08.520And we don't have the capacity at the court to defend ourselves.
01:26:13.420We don't have a bully pulpit or anything like that.
01:26:16.700Most of us just simply are doing our jobs.